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Reform and Continuity in Post-Mao People's Republic of China

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Reform and Continuity in Post-Mao People's Republic of China OccAsioNAl PApERs/ REpRiNTS SERiEs iN CoNTEMpoRARY • '• AsiAN STudiEs NUMBER 1 - 1982 (46) SOCIALIST LEGALISM: REFORM AND , CONTINUITY IN POST-MAO •I PEOPLE'S REPUBLIC OF CHINA • Hungdah Chiu Scltool of LAw UNivERsiTy of 0 •• c::; MARylANd. 0 ' Occasional .Papers/Reprint Series in Contemporary Asian Studies General Editor: Hungdah Chiu Executive Editors: David Salem Lyushun Shen Managing Editor: Shirley Lay Editorial Advisory Board Professor Robert A. Scalapino, University of California at Berkeley Professor Martin Wilbur, Columbia University Professor Gaston J. Sigur, George Washington University Professor Shao-chuan Leng, University of Virginia Professor Lawrence W. Beer, University of Colorado Professor James Hsiung, New York University Dr. Robert Heuser, Max-Planck-Institute for Comparative Public Law and International Law at Heidelberg Dr. Lih-wu Han, Political Science Association of the Republic of China Professor K. P. Misra, Jawaharlal Nehru University, India Professor J. S. Prybyla, The Pennsylvania State University Professor Toshio Sawada, Sophia University, Japan Published with the cooperation of the Maryland International Law Society All contributions (in English only) and communications should be sent to Professor Hungdah Chiu, University of Maryland School of Law, 500 West Baltimore Street, Baltimore, Maryland 21201 USA. All publications in this series retlect only the views of the authors. While the editor accepts responsibility for the selection of materials to be published, the individual author is responsible for statements of facts and expressions of opinion contained therein. Subscription is US $10.00 for 8 issues (regardless of the price of individual issues) in the United States and Canada and $12.00 for overseas. Check should be addressed to OPRSCAS and sent to Professor Hungdah Chiu. Price for single copy of this issue: US $2.00 1982 by Occasional Papers/Reprints Series in Contemporary Asian Studies, Inc. ISSN 0730-0107 ISBN 0-942182-44-X SOCIALIST LEGALISM: REFORM AND CONTINUITY IN POST-MAO PEOPLE'S REPUBLIC OF CHINA Hungdah Chiu* (Paper delivered at the Tenth Sino-American Conference on Mainland China, June 16-18, 1981, Institute of Interna­ tional Studies and Institute of East Asian Studies, Univer­ sity of California, Berkeley, California, U.S.A.) Contents I. Introduction . 1 II. The Legal System before 1979 and the Need for Reform . 3 III. Reform of the Legal System and Its Limits . 14 IV. Socialist Legality, The Case of Wei Jingsheng and the Trial of the Gang of Four and Lin Biao Clique... 23 V. Conclusion.............................................. 29 Chinese Language Articles/Books Cited in this Paper (in Chinese characters) . 33 I. INTRODUCTION For almost a generation, the People's Republic of China (PRC) operated under a socialist legal system unique among its fellow Communist countries, with neither a criminal code, a criminal pro­ cedure code, or lawyers. Judges were not required to have had legal training, nor were they required or expected to cite legal provisions in rendering judgments. For a considerable time, this ''unique legal system" had greatly impressed some Western visitors. One Ameri­ can judge, for example, after visiting the PRC in 1975, expressed the view that "in this new society [of the PRC] ... serious crime is a rarity, juvenile delinquency nearly nonexistent and lawyers virtually unnecessary .... Jails are few and their populations small. The trappings of a restrictive regime are absent . Maoist socialism has produced a new society ...." 1 An American law professor ex­ pressed a similar view after a visit in 1977 by writing that "[f]ull • Professor of Law, University of Maryland, School of Law, Baltimore, Maryland. l. George W. Croketeet, Jr., "Criminal Justice in China," Judicature, Vol. 59, No. S (December 1975), p. 247. · (1) 2 CONTEMPORARY ASIAN STUDIES SERIES employment and a fairly uniform standard of living reduce the moti­ vation for crime ...." 2 Then, unexpectedly, beginning in 1978, virtually all the Chinese media, from official newspapers and publications to wall posters, the underground press and other sources, burst out with numerous re­ ports relating angry complaints of arbitrary imprisonment or execu­ tion carried out under official authority. These publications set forth the people's demands for human rights, democracy, and other legal rights and protections. Since that time barely a day has passed with­ out a report in an official publication of the reversal of a verdict against an innocent person who had been convicted and imprisoned or executed before 1977. The ·~new society'' described by the above­ mentioned two American visitors was labeled by an official PRC English-language publication as "feudal depotism married to 20th­ century fascism." 3 The PRC authorities frankly acknowledged that China's legal system was manifestly imperfect and badly in need of reform. The Communique of the Third Plenary Session of the 11th Central Committee of the Communist Party of China (December 18 and 22, 1978) set the goals of China's legal reform as follows: In order to safeguard people's democracy, it is imperative to strengthen the socialist legal system so that democracy is systematized and written into law in such a way as to en­ sure the stability, continuity and full authority of this dem­ ocratic system and these laws; there must be laws for people to follow, these laws must be observed, their en­ forcement must be strict and law breakers must be dealt with. From now on, legislative work should have an im­ portant place on the agenda of the National People's Con­ gress and its Standing Committee. Procuratorial and judicial organizations must maintain their independence as is appropriate; they must faithfully abide by the laws, rule and regulations, serve the people's interests, keep to the facts; guarantee the equality of all people before the peo­ ple's laws and deny anyone the privilege of being above the law.4 With surprising speed, the PRC enacted several important laws 2. Derrick Bell. "Inside China: Continuity and Social Reform, "Juris Doctor, Vol. 8, No. 4 (April 1978), p. 26. 3. "Prospect and Retrospect, China's Socialist Legal System," Beijing Review, Vol. 22, No. 2 (January 12, 1979), p. 27. 4. "Quarterly Chronicle and Documentation (October-December 1978)," The ClriPio Quarterly, No. 77 (March 1979), p. 172. SOCIALIST LEGALISM 3 in 1979, including an Arrest and Detention Law,5 a Criminal Law, a Criminal Procedure Law, an Organic Law of the People's Court and an Organic Law of the People's Procuratorates.6 Immediately after the promulgation of these laws, a national publici!_( campaign was begun to make the laws known to all the people. Every leading daily in the country has published the full texts of these laws, to­ gether with explanatory articles and commentaries. Some papers have published special columns answering questions concerning the laws and explaining legal terms. Legal ~riodicals, which ceased to publish in 1966, began to appear again. Several popular and easy­ to-understand books on law were published.9 Never before in the 30-year history of the PRC had law and the legal system so widely interested the general public and the government. This paper ana­ lyzes and discusses the present state of PRC legal reform, the direc­ tion which that reform is likely to take, and the extent to which PRC legal practice is likely to retain its pre-1979 features. To understand the recent legal reform and its limits, one must appreciate how the legal system operated before 1979. Accordingly, this analysis begins with an overview of the Chinese legal system in the pre-1979 period. II. THE LEGAL SYSTEM BEFORE 1979 AND THE NEED FOR REFORM The Communique of the Third Plenary Session of the 11th Cen­ tral Committee of the Communist Party (December 18 and 22, 1978) sets forth the contents of the proposed law reform in sixteen Chinese characters-Youfa keyi, Youfa biyi, Zhifa biyan, Weifa bijiu (there must be laws for people to follow, these laws must be observed, their enforcement must be strict, and law breakers must be dealt with). 10 5. "Regulations for Arrest and Detention," Beijing Review, Vol. 22, No. 10 (March 9, 1979), p. 4. Complete text released by New China New agency on February 24, 1979. 6. See Peng Zhen, "Explanation on Seven Laws," Beijing Review, Vol. 22 No. 29 (July 20, 1979), pp. 8-16. 7. See "Publicizing the New Laws," Beijing Review, Vol. 22, No. 29 (July 20, 1979), pp. 3-4. 8. E.g., Faxue Yanjiu (Studies in law), Minzltu yu Fazlti (Democracy and legal sys­ tem), Renmin Gongan (People's public security), Renmin Jianclta (People's procuratorate), Rmmin S!fa (People's judiciary), and Fazlti Bao (Legal system daily). 9. E.g., Chen Qunlong et al., Falu zlti.rlti wmda (Questions and answers on law), Beijing: Beijing chupanshe, 1979, and Zhang Youyu and Wang Shuwen, Falujihen zltislti jianglrua (talks on basic knowledge of law). Beijing: Zhong guo qingnienchubanshe, 1980. 10. See note 4, supra. 4 CONTEMPORARY AsiAN STUDIES SERIES These sixteen character words also concisely expressed some basic problems of China's legal system before 1979 which are discussed one by one below. 1. There Must be Law for People to Follow. Before the formal inauguration of the PRC on October 1, 1949, the Chinese People's Political Consultative Conference adopted the Common Program 11 which served as a provisional constitution until the adoption of a formal constitution on September 20, 1954. The Common Program abolished all former Republic of China (Nation­ alist) laws, 12 but the PRC did not itself enact substantive and proce­ dural civil and criminal laws to replace those it had abolished. The only important criminal legislation enacted before the effective date of the present Criminal Law, January 1, 1980, was the Act for the Punishment of Counterrevolutionaries of the PRC, promulgated on February 21, 195l.U Two articles of the latter Act deserve special attention.
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